Mediation Rules: Does the victim of domestic violence have to go to mediation?

The victim of domestic violence doesn’t have to go to mediation with the other spouse. Texas law has clear protections for mediation and domestic violence victims. Mediation rules provide that if a judge orders mediation in a divorce involving domestic violence, the victim can file a written objection to the order. Per Texas Family Code Section 6.602(d), the spouse accused of domestic violence may then request a hearing to weigh whether the evidence supports the victim’s accusations and objection to mediation.

The ‘preponderance of evidence standard’ means that domestic violence more likely than not occurred in the marriage. It’s not as high as the ‘reasonable doubt standard’ used in most criminal cases. Even if one spouse was not convicted of a domestic violence crime, the other may still successfully object to mediation.

If the objection is unsuccessful and the case ultimately heads to mediation, the rules provide that the court will take measures to ensure the victim of the alleged domestic violence is safe, both physically and mentally. This may include barring face-to-face contact between the parties, which in most cases means the parties are in different rooms. The mediator will meet with both parties (and their attorneys) privately.

Why might domestic violence compromise mediation?

If one spouse abused another, mentally or physically, it might put the abused spouse at a disadvantage during mediation. The rules of mediation provide that the spouses meet on equal footing and work together to come to a divorce agreement. If one spouse abused the other, then the abuser spouse may intimidate the other and may compromise the very nature of mediation’s rules and goals.

So if your marriage involved domestic violence, it’s important to provide appropriate evidence that proves this so you may avoid mediation. Work with your attorney to explore your options in these cases.

What other protections do victims of domestic violence have?

The victim may explore filing legal complaints against the abuser, the penalties of which are:

jail time;

fines;

probation; and

community supervision.

The victim can also file a civil order of protection against the abuser. This order compels the offending spouse from further acts of violence, harassment, or threatening the victim, even through a third party.

It can also forbid the abuser from going near the victim’s work or school. If the offender violates this order, he or she is in contempt of court which can lead to jail time and fines. In addition, during any criminal domestic violence trial, the judge can order a Magistrate’s Order for Emergency Protection which has similar protections.

How does domestic violence affect child custody?

According to the Texas Divorce Code, a judge cannot issue joint custody for the children in a divorce if one parent has a history or pattern of physical or sexual abuse toward either the other parent or children. The judge may permit visitation if he or she deems that it’s in the best interest of the child. This visitation can be supervised or unsupervised.

Should I hire a divorce attorney?

The law firm Warren & Migliaccio can assist with the various sensitive issues that arise during a divorce case in Plano and can explain all of the mediation rules and rights of the parties. Contact our office at 888-584-9614.

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